Colvard v. Bd. of Commissioners of Graham Cnty.

• Decision Date: 31 October 1886
• Court: North Carolina Supreme Court
• Parties: J. J. COLVARD v. THE BOARD OF COMMISSIONERS OF GRAHAM COUNTY.

95 N.C. 515

J. J. COLVARD

v.THE BOARD OF COMMISSIONERS OF GRAHAM COUNTY.

Supreme Court of North Carolina.

October Term, 1886.

This was a CIVIL ACTION, tried before Gudger, Judge, at Fall Term, 1886, of the Superior Court of GRAHAM County.

This was an action to compel the defendants, by mandamus, to induct the plaintiff into the office of sheriff of said county.

The following issues were submitted to the jury:

I. Was the plaintiff elected sheriff of Graham County, November, 1884?

II. Did the plaintiff offer bond with sufficient security to the Board of Commissioners of Graham County on the first Monday in December, 1884?

III. Was the said plaintiff ready, willing and able to settle in full for taxes heretofore due by him as sheriff with the authorities of the county, and did he offer to settle on said first Monday of December, 1884?

These issues were, by direction of the Court, found in favor of the plaintiff. The defendant objected to the second issue being submitted by the Court, on the grounds that the same was not responsive to the pleadings and the law, and asked that the following issues be submitted, to-wit:

I. Did the plaintiff present three several bonds as required by Statute, §2073 of The Code, and if so, were the bonds justified by the sureties thereto?

II. Did the plaintiff produce receipts in full for all the taxes due the county at or before the offer of his bond as sheriff elect?

These issues, by direction of the Court, were answered in the negative.

It was admitted that the plaintiff was former sheriff of said county for the two years next preceding his election in November, 1884, and that one W. F. Cooper was tax collector for said county for the year 1884, and was tax collector on the first Monday in December, 1884. It was further admitted by the plaintiff that he did not produce receipts in full before the board of commissioners, nor offer but the one bond described in his complaint, on the first Monday in December, 1884, on demand to be inducted into office. On the trial, the plaintiff offered himself as witness in his own behalf, and testified that he was ready and able and willing to settle and pay all the arrears of taxes due the county from him as former sheriff and tax collector for said county, and that he demanded settlement, tendered the bond as described in the complaint, and demanded to be inducted into office as sheriff of said connty on the first Monday in December, 1884. And the plaintiff offered other witnesses to corroborate his own testimony. He also offered two receipts marked as exhibit “A” and “B,” for the arrears of taxes due from him to said county, dated on January 5th, 1885, and rested his case.

The defendant offered several witnesses to disprove the testimony of the plaintiff, and also offered the records of a suit in said Court by the board of county commissioners of said county against the plaintiff and his securities on his bond for the collection of the taxes for the year 1883, in which suit was claimed the sum of $1,500, and the records of a judgment in said action at Spring Term, 1885, against the defendant and his securities in that action for the costs.

On the argument of the case, the defendant's counsel moved the Court to dismiss the plaintiff's action, upon the grounds that the complaint did not state facts sufficient to constitute a cause of action; that it did not allege the offer of but the one bond as described in the complaint, and that it did not allege the production of receipts in full from the county treasurer, and others for the arrears of taxes due from the plaintiff as former sheriff and tax collector of said county, on his demand to be inducted into office.

The Court declined the motion, and the defendant excepted.

The...